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Oglala Sioux Tribe: Law and Order Code

Received: 2002.

Oglala Sioux Tribal Environmental Review Code

TABLE OF CONTENTS

[Code]

Environmental Review Permit Application, Routing Slips and Permit

Screening Committee Rotation

Appeal Process

Introduction, Pamphlet, Legislative Report & Analysis

 

§100 Tribal Council Findings

The Oglala Sioux Tribal Council finds:

(1) that the Oglala Sioux Tribal Constitution, Article IV, sections (m) and (n), empowers the Oglala Sioux Tribal Council to protect and preserve the Oglala Sioux peoples' health and welfare and their air, land, water and historical, cultural and natural resources;

(2) that the Tribal Council does carry out those responsibilities through its ordinances and resolutions;

(3) that there is a historical, cultural and spiritual relationship between the Oglala Sioux people and the natural environment;

(4) that unmonitored growth and development is occurring, and will continue to occur, within the tribe's jurisdiction that is harming, or has the potential to harm, the Oglala Sioux peoples' health and welfare and their air, land, water and other historical, cultural and natural resources.

(5) that unmonitored growth and development threatens or interferes with and has a direct effect on the tribal government carrying out its responsibilities under its constitution, ordinances, resolutions, customs and traditions.

(6) that unmonitored growth and development threatens or interferes with economic activity within the tribe's jurisdiction because it increases the cost of doing business within the Tribe and burdens tribal services.

(7) that due to the adverse effects from unmonitored development and interference there is a critical and continuing need to monitor growth and development through an environmental review permit process.

(8) that it is necessary to collect and analyze information and data on development activity and its effect within the tribe's jurisdiction to prevent damage or harm to the Oglala Sioux people and the Pine Ridge Indian Reservation environment and to manage, develop, and protect the Oglala Sioux people's historical, cultural and natural resources in an environmentally and economically sound manner.


§101 Declaration of Policy

The Oglala Sioux Tribal Council declares that it is the tribe's policy to protect and preserve the Pine Ridge Indian Reservation environment and to provide a safe and habitable homeland for the Oglala Sioux people's present and future generations by establishing minimum procedures to monitor growth and development within the tribe's jurisdiction which will protect the reservation's environment and promote the Oglala Sioux people's stability and security.

§102 Definitions

(1) "Appeals Committee" means the Coordinators of the Committees of the Tribal Council and one representative of the Grey Eagle Society.

(2) "Commercial" means a private or public corporation or entity occupied with business and commerce or activity of general social interest to the Tribe.

(3) "Developer" means any person or entity, tribal or non-tribal, private or governmental, who performs, or plans to perform, development activities within the tribe's jurisdiction.

(4) "Development" means any activity which results in a significant change in a structure's use or appearance, or a significant change in a land site's use or appearance.

(5) "Environmental Health Technical Team" means those Oglala Sioux Tribal Program Directors and/or Department heads, or their representatives, designated in OST RESOLUTION NO. 97-74, as amended by OST Resolution 98-04XB, including Solid Waste Management, Water and Sewer Program, Rural Water Supply System, Land Office, Environmental Protection Program, Water Resource Department, Community Health Representative Program, Housing Authority, Badlands Bombing Range Project_,Health and Human Services Committee Coordinator, Revenue Office, Transportation Office and Tribal Employment Rights Office, and those other representatives as the Tribal Council may from time to time add by Resolution duly adopted, and all of whose activities are regularly reported to the Tribal Council's Health and Human Services and Land Committees.

(6) "Environmental Review Permit" or "permit" means a document issued by the Environmental Health Technical Team which indicates that any proposed development within the tribe's jurisdiction has been reviewed for compliance with this code.

(7) "Environmental Review Permit Screening Committee" means representatives from three Environmental Health Technical Team member departments who shall be selected on a rotating basis and who shall serve a three calendar month term for each rotation in which the department is on the Environmental Review Permit Screening Committee.

(8) "Land" means any ground, soil, or earth whatsoever, including fields, meadows, pastures, woods, waters, marshes, wetlands, and rock.

(9) "Low Impact Development" mean(s) an activity which has no significant change on a structure's use or appearance or no significant change on a land site's use or appearance.

(10) "Significant" means the change is:

(a) highly controversial;

(b) otherwise minor but might have a cumulatively significant effect;

(c) creates secondary effects;

(d) unsuitable for the nature of the setting where the proposed action would be taken or;

(e) may have probable beneficial environmental effects, but on balance the Environmental Health Technical Team believes that although the effect will be beneficial, the action may still have a significant effect on the environment.

(11) "Structure" means that which is built or constructed whether installed on, above, or below the surface of land.

(12) "Working days" means those days when tribal offices are regularly open for business and does not include weekend days, holidays when tribal offices are regularly closed, or those days officially closed by the Tribe.


§103 Permit Requirements for Development; Other Tribal and Federal Law Still Apply

(1) The Tribe prohibits development within its jurisdiction unless the Environmental Health Technical Team issues an Environmental Review Permit for the development; provided that for an Oglala Sioux tribal member a permit shall not be required for any traditional religious activity of the Oglala Sioux people.

(2) Although the Environmental Health Technical Team issues a Tribal Environmental Review Permit the developer must comply with all other Tribal or Federal law that applies to the development and to activities which may affect the Oglala Sioux people or Tribal resources


§104 Power to Conduct Review and Issue an Environmental Review Permit; Conditions Upon Determination to Withhold A Permit

(1) The Environmental Health Technical Team shall review an Environmental Review Permit application and:

(a) issue the permit when it determines that the development is low impact, subject to conditions that it or the designated tribal departments may impose under tribal or federal law;

(b) issue the permit where all designated tribal departments sign-off, subject to conditions that it or the designated tribal departments may impose under tribal or federal law; or

(c) deny the permit where a designated tribal department withholds sign-off, subject to § 104(2).

(2) When the Environmental Health Technical Team determines that development does not comply with federal or tribal law so that an Environmental Review Permit can not issue it must provide the applicant with a written explanation that:

(a) identifies the particular tribal department(s) that withheld sign-off;

(b) explains the reason why sign-off was withheld; and

(c) explains the conditions the applicant must meet to obtain sign-off.

The applicant is then responsible for obtaining, within 90 days from the date of the filing of the application , the tribal department's sign-off before the Environmental Health Technical Team issues or denies the Environmental Review Permit. The Environmental Health Technical Team may for good cause extend by up to 30 days the 90 day time period.


§105 Permit Application Requirements

(1) The Land Office will make available to a developer an Environmental Review Permit application to file with the Land Office . The application shall include, at a minimum:

(a) The applicant's name;

(b) The applicant's job title if the applicant is submitting the application for the applicant's employer;

(c) A brief description of the proposed activity;

(d) The land's legal description or location for the proposed site and a copy of the necessary permits, leases, easements or other possessory interests that allow the applicant to conduct the proposed activity on the described land.

(e) a certification that the applicant has all permits, licenses, bonds or other clearances, including archaeological historical, and cultural clearances, required by tribal law or regulation to conduct the proposed activity; and

(f) any information or documentation to support a request for a low-impact activity determination.

(2) An application for commercial development shall be accompanied by a $100.00 application fee.


§106 Permit Application Procedure

(1) The applicant shall file the application in the Land Office. The Land Office shall:

(a) provide the applicant with a receipt for the application stamped with the date and time the application was filed and, where required, a receipt for the application fee;

(b) make seven copies of the original application, and

(i) place the original application in the Environmental Review Permit permanent file;

(ii) keep one copy on file in the Land Office to be available for public inspection

(c) provide four copies to the Environmental Review Permit Screening Committee who shall review the application and make a determination that:

(i) the proposed activity is low impact and does not require review by designated tribal departments and recommend to the Environmental Health Technical Team that the permit issue. The Environmental Health Technical Team may impose minimal conditions on the permit; or

(ii) the proposed activity requires full review by designated tribal departments and that the appropriate routing slip shall be attached to the four application copies for circulation to the following designated tribal departments for review and sign-off:

Copy I to the Tribal Land Office; the Tribal Environmental Specialist; the Water Resources Department; and Solid Waste Management

Copy II to the Badlands Bombing Range Project; the Pesticides Enforcement Program; the Groundwater Protection Program; and the Natural Resources Regulatory Agency.

Copy III to the Rural Water Supply System; the Water and Sewer Program; and the Health and Human Services Committee Coordinator.

Copy IV to the Revenue Office; the Tribal Employment Rights Office; and the Housing Authority.

(d) provide the Tribal District Office, and Tribal Council representative(s) from the Tribal District, where the proposed site is located with a copy of the application within five days from when the application was filed.

(2) Each designated tribal department must complete its review within three (3) working days from when it receives the application and sign-off or withhold sign-off on the application. A department that withholds sign-off must state the specific reason(s) for withholding its sign-off and describe the conditions the applicant needs to meet to obtain department sign-off. A department's failure to complete its review within three (3) working days shall mean it signs-off.

(3) The Environmental Health Technical Team shall take no more than fifteen (15) working days from the date the application is filed to issue or deny the permit, subject to § 104 (2) . The applicant may consider the permit denied and seek any remedies available under § 107 when the Environmental Health Technical Team fails to complete the application review process within fifteen (15) working days.

§107 Appeals and Judicial Review

(1) (a) Any person aggrieved by an Environmental Review Permit being issued or denied shall seek administrative review within ten (10) working days from that decision by filing a Notice of Appeal with the Secretary of the Land Committee on behalf of the Appeals Committee.

(b) The Secretary of the Land Committee shall upon receipt of the Notice of Appeal provide a copy to the Environmental Health Technical Team and, if the appeal is for the issuance of a permit, a copy to the permittee. The Environmental Health Technical Team shall, within ten (10) working days from receipt of the Notice of Appeal, forward to the Secretary of the Land Committee a copy of all records and documents in the files regarding the permit application and review.

(c) The Appeals Committee shall, within 30 working days from receiving the records and documents, decide the appeal based on the record and any written submissions from interested parties. Written submissions must be filed with the Secretary of the Land Committee within twenty (20) working days from the filing of the Notice of Appeal. The decision of the Appeals Committee shall be final for the Tribal Administration.

(d) The burden of proof is with the party bringing the appeal.

(e) Where the appeal challenges the Environmental Health Technical Team issuing a permit, the permit shall be held in abeyance pending the Appeals Committee's decision.

(2) Any person who was a party to the appeal before the Appeals Committee and receives an adverse decision shall file an appeal for relief other than money damages in the Oglala Sioux Tribal Court against the Environmental Health Technical Team within 30 calendar days from the date of the adverse decision. Tribal Court review is limited to:

(a) whether the decision is supported by substantial evidence;

(b) whether the permit is issued or denied in compliance with the Environmental Review Code; or

(c) whether the action of the Environmental Health Technical Team is contrary to tribal law or is arbitrary and capricious.

§ 108 Authority to Seek Enforcement

The Tribal Environmental Specialist is authorized, with the Tribal Attorney's assistance, to issue a Cease and Desist Order, Compliance Order or other similar order as the Environmental Protection Program shall deem necessary to enforce this Code including seeking in the Oglala Sioux Tribal Court any remedy otherwise available under Tribal law, including, but not limited to, an order that the unpermitted activity be stopped, an order for any unpermitted development to be removed, and/or an order for money damages in an amount necessary to remedy any adverse effects caused by the unpermitted activity.

§ 109 Severability.

In the event that any one or more of the provisions contained in this Code shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, that invalidity, illegality or unenforceability shall not affect any other provision of this Code; and this Code shall be construed as if that invalid, illegal or unenforceable provision had never been contained in this Code.

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ORDINANCE NO. 98-08

ORDINANCE OF THE OGLALA SIOUX TRIBAL COUNCIL
OF THE OGLALA SIOUX TRIBE
(An Unincorporated Tribe)

ORDINANCE OF THE OGLALA SIOUX TRIBE ESTABLISHING A POLICY FOR THE PROTECTION AND PRESERVATION OF THE ENVIRONMENT AND THE HEALTH AND SAFETY OF THE OGLALA SIOUX PEOPLE OF THE PINE RIDGE INDIAN RESERVATION BY THE ADOPTION OF THE "OGLALA SIOUX TRIBAL ENVIRONMENTAL REVIEW CODE."

WHEREAS, the Oglala Sioux Tribal Council is empowered pursuant to Article IV (m) & (n) of the Oglala Sioux Tribal Constitution to protect and preserve the Oglala Sioux people's health and welfare and their air, land_, water, and historical, cultural and natural resources, within the boundaries of the 1851 Treaty, and

WHEREAS, there is a historical, cultural and spiritual relationship between the Oglala Sioux people and the natural environment, and

WHEREAS, unmonitored growth and development is occurring, and will continue to occur, within the tribe's jurisdiction that is harming, or has the potential to harm, the Oglala Sioux people's health and welfare and their air, land, water, and other historical, cultural and natural resources, and

WHEREAS, unmonitored growth and development threatens or interferes with and has a direct effect on the ability of the tribal government to carry out its responsibilities under its Constitution, ordinances, codes, resolutions, customs and traditions, and

WHEREAS, unmonitored growth and development threatens or interferes with economic activity within the tribe's jurisdiction because it increases the cost of doing business within the Tribe and burdens tribal services, and

WHEREAS, as a result of the adverse effects from unmonitored development and interference there is a critical and continuing need to monitor growth and development within the Oglala Sioux tribe's jurisdiction, and

WHEREAS, it is necessary to collect and analyze information and data on development activity and its effect within the tribe's jurisdiction to prevent damage or harm to the Oglala Sioux people and the Pine Ridge Indian Reservation environment and to manage, develop, and protect the Oglala Sioux people's historical, cultural and natural resources in an environmentally and economically sound manner, now

THEREFORE BE IT ORDAINED, that it is the policy of the Oglala Sioux Tribe in order to protect and preserve the Pine Ridge Indian Reservation environment and to provide a safe and habitable homeland for the Oglala Sioux people's present and future generations by establishing minimum procedures to monitor growth and development within the tribe's jurisdiction which will protect the reservation's environment and promote the Oglala Sioux people's stability and security, and

BE IT FURTHER ORDAINED, that the Oglala Sioux Tribal Council does hereby adopt the "Oglala Sioux Tribal Environmental Review Code" (attached hereto and incorporated herein by this reference) which shall become effective thirty days after adoption by the Oglala Sioux Tribal Council.

___________/s/____________

THERESA B. TWO BULLS
Secretary
Oglala Sioux Tribe

A-T-T-E-S-T:

__________/s/___________________
JOHN W. STEELE
President
Oglala Sioux Tribe

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Application Routing Chart (1 of 2)

*Digitizer's Note: This one-page chart could not be easily digitized into HTML format while still preserving the original format. Contact the National Indian Law Library for assistance accessing this chart.

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Date Filed _______________

Permit Application No.______

Initial ___________________

ENVIRONMENTAL REVIEW PERMIT APPLICATION

ROUTING SLIP

COPY 1

The Environmental Review Permit Screening Committee finds that the proposed activity requires full tribal department's review.

Sign off	Withhold Sign-Off		Date Submitted	Date Due
(please initial within three days of date submitted)	(See explanation)
___________________	____________________	Tribal Land office	_____________	________
___________________	____________________	Environmental Specialist	_____________	________
___________________	____________________	Water Resource Department	_____________	________
___________________	____________________	Solid Waste Management	_____________	_________

Conditions or explanation to withhold: _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

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ENVIRONMENTAL REVIEW PERMIT APPLICATION

ROUTING SLIP

COPY II

The Environmental Review Permit Screening Committee finds that the proposed activity requires full tribal department's review.

Sign off	Withhold Sign-Off		Date Submitted	Date Due
(please initial within three days of date submitted)	(See explanation)
___________________	____________________	Badlands Bombing Range Project	_____________	________
___________________	____________________	Pesticide Enforcement Program	_____________	________
___________________	____________________	Groundwater Protection Program	_____________	________
___________________	____________________	Natural Resource Regulatory Agency	_____________	_________

Conditions or explanation to withhold: _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

 

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ENVIRONMENTAL REVIEW PERMIT APPLICATION

ROUTING SLIP

COPY III

The Environmental Review Permit Screening Committee finds that the proposed activity requires full tribal department's review.

Sign off	Withhold Sign-Off		Date Submitted	Date Due
(please initial within three days of date submitted)	(See explanation)
___________________	____________________	Rural Water Supply System	_____________	________
___________________	____________________	Water and Sewer Program	_____________	________
___________________	____________________	Health and Human Services Committee Coordinator	_____________	________

Conditions or explanation to withhold: _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

 

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ENVIRONMENTAL REVIEW PERMIT APPLICATION

ROUTING SLIP

COPY IV

The Environmental Review Permit Screening Committee finds that the proposed activity requires full tribal department's review.

Sign off	Withhold Sign-Off		Date Submitted	Date Due
(please initial within three days of date submitted)	(See explanation)
___________________	____________________	Revenue Office	_____________	________
___________________	____________________	Tribal Employment Rights Office	_____________	________
___________________	____________________	Housing Authority	_____________	________

Conditions or explanation to withhold: _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

 

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OGLALA SIOUX TRIBE PERMIT
ENVIRONMENTAL REVIEW

 

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SCREENING COMMITTEE RECOMMENDATION

The Environmental Review Permit Screening Committee has reviewed Application Number ____________ and recommends to the Environmental Health Technical Team (FMTT) that the EHTT issue an Environrnental Review Permit subject to the conditions described below since the proposed activity is Low Impact Development. Conditions: ________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________   Environmental Review Permit Screening Committee Attest: __________________________________ ____________________________________ ____________________________________ Dated: __________________________________

 

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Dear Applicant: I am writing to inform you that the Oglala Sioux Tribal Environmental Health Technical Team has reviewed your Environmental Review Permit Application, along with information, written or verbal, if any, and now denies your application since the following tribal department(s) withheld sign-off: ________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ for the following reasons: ________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ Under Oglala Sioux Tribal Environmental Review Code, § 107, you have the right to appeal this decision to: Appeals Committee c/o Secretary of the Oglala Sioux Tribal Council Land Committee P.O. Box H Pine Ridge South Dakota 57770 Your appeal must be in writing by filing a Notice of Appeal (attached) and must be received no later than ten (10) working days from the date of this letter. This appeal must be accompanied by a copy of your application and this decision letter. To expedite the appellate process and to ensure full consideration of your appeal, you may submit a statement of the reasons why you believe this decision is in error. This statement of reasons must be filed with the Secretary of the Oglala Sioux Tribal Council Land Committee within twenty (20) working days from the filing of the Notice of Appeal. Under Oglala Sioux Tribal Environmental Review Code, § 107(I)(e), if an appeal is taken your permit shall be held in abeyance pending the Appeals Committee's decision. Dated: ______________________________ ____________________________ Environmental Health Technical Team

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Dear I am sending you an Environmental Review Permit Application, No. ______________ as required under the Oglala Sioux Tribal Environmental Review Code, § 1O6(1)(d). This application is sent to you for informational purposes only. Dated: _________________________ ______________________________________

 

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Dear Applicant: I am writing to inform you that the Oglala Sioux Tribal Environmental Health Technical Team has reviewed your Environmental Review Permit Application, along with information, written or verbal, if any, and cannot complete the review of your application since the following tribal department(s) withheld sign-off: ________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ for the following reasons: ________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ The following conditions must be met, within 90 days from the date of the filing of the application, to obtain sign-off. ________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________   Dated: ______________________________ ____________________________ Environmental Health Technical Team

 

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ENVIRONMENTAL REVIEW PERMIT SCREENING COMMITTEE

The Environmental Review Permit Screening Committee (Screening Committee) is defined in §102 (7) of the Oglala Sioux Tribal Environmental Review Code (ERC) Pursuant to§106 (1) (c) of the ERC, the Screening Committee has responsibility to provide an initial screening to all Environmental Review Permit Applications to determine whether the proposed development is low impact or requires the full review of the Environmental Health Technical Team (EHTT) The Screening Committee is made up of representatives from three EHTT member departments. These representatives are selected on a rotating basis and serve a three calendar month term for each rotation in which the department is on the Screening Committee. In order to establish the initial rotation and the following rotations the EHTT adopted the following schedule to begin on June 1, 1998:

Date 1998	Department	Representative	Alternate
June	Water Resources	Joe Amiotte	Delinda Simmons
June-July	Tero	Don Twiss	N/A
June/July/August	Housing Authority	Earl Neumeyer	N/A
July/August/September	Water and Sewer Program	Pat Brewer	Rilda Hill
August/September/October	Solid Waste Program	John Her Many Horses	Bobby Sullivan
September/October/November	Environmental Specialist	Kim Clausen	Jody Plenty Wounds
October/November/December	Badlands Bombing Range Project	Emma Featherman Sams	Keena Clausen
November/December/January '99	Revenue Office	Davey Pourier	Carol Weston
December/January/February '99	Health and Human Services Committee Coordinator	Stacey Ecoffey	Fawn Conroy
1999
January/February/March	Rural Water Supply System	Calvin Ghost Bear	Reno Red Cloud
February/March/April	Land Office	Robin White	Ila Twiss
March/April/May	Community Health Representative	Jim Waters	N/A
April/May/June	Transportation	Diane Zephier	N/A

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APPEAL PROCESS

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Timelines for Taking an Appeal of a Decision of the Environmental Health Technical Team on the Issuance of an Environmental Review Permit.

*Digitizer's Note: Contact the National Indian Law Library for assistance accessing this chart.

 

10 days Within Which to file Notice of Appeal
---------->

10 days from Notice of Appeal for EHTT to Transmit copy of Records to Secretary of Land Committee
**********---------->

20 days from Notice of Appeal for any Interested party to file a Written submission to the Appeal Board
**********-------------------->

30 days from the time the records are transmitted by the EHTT to consider and decide the appeal
********************------------------------------>

10 Days

20 Days

30 Days

40 Days

Decision by the EHTT ->

Notice of Appeal Must be Filed ->

Copy of Records Must be Sent to Secretary of Land ->

Appeal Decided by Appeal Committee

->

*Indicates that the time could begin to run anytime during this period.

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APPEAL COMMITTEE FOR OGLALA SIOUX TRIBAL
ENVIRONMENTAL HEALTH TECHNICAL TEAM

 

___________________________________________, Appellant, V. OGLALA SIOUX TRIBAL ENVIRONMENTAL HEALTH TECHNICAL TEAM, Appellee.

NOTICE OF APPEAL

Notice is hereby given that ________________________________, (check one) ______ applicant, ______ interested party, hereby appeals to the Appeals Committee the Environmental Health Technical Team's decision, or failure to act in a timely manner, to (check one) _____ issue, _____ deny the permit pursuant to Environmental Review Permit Application Number _________ to ______________________ on ___ _____________,19____.

Dated: __________________________________

________________________________________
Signature

________________________________________
Name

________________________________________
________________________________________
________________________________________
Address/Phone and fax number

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___________________________________________, Appellant, V. OGLALA SIOUX TRIBAL ENVIRONMENTAL HEALTH TECHNICAL TEAM, Appellee.

NOTICE TO ENVIRONMENTAL HEALTH TECHNICAL TEAM

Dated:__________________________________

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APPEAL COMMITTEE FOR OGLALA SIOUX TRIBAL
ENVIRONMENTAL HEALTH TECHNICAL TEAM

___________________________________________, Appellant, V. OGLALA SIOUX TRIBAL ENVIRONMENTAL HEALTH TECHNICAL TEAM, Appellee.

NOTICE TO PERMITTEE

Dated:__________________________________

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Timelines for Taking an Appeal of a Decision of the Environmental Health Technical Team on the Issuance of an Environmental Review Permit.

*Digitizer's Note: Contact the National Indian Law Library for assistance accessing this chart.

10 days Within Which to file Notice of Appeal
---------->

10 days from Notice of Appeal for EHTT to Transmit copy of Records to Secretary of Land Committee
**********---------->

20 days from Notice of Appeal for any Interested party to file a Written submission to the Appeal Board
**********-------------------->

30 days from the time the records are transmitted by the EHTT to consider and decide the appeal
********************------------------------------>

10 Days

20 Days

30 Days

40 Days

Decision by the EHTT ->

Notice of Appeal Must be Filed ->

Copy of Records Must be Sent to Secretary of Land ->

Appeal Decided by Appeal Committee

->

*Indicates that the time could begin to run anytime during this period.

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THE NEED FOR AND BENEFITS OF AN ENVIRONMENTAL REVIEW CODE

FOR THE PROTECTION OF THE OGLALA SIOUX PEOPLE

The people of the Oglala Sioux Tribe live on a portion of their ancestral lands reserved by their predecessors as a permanent homeland. It is the responsibility of the Oglala Sioux Tribe to care for and protect the Oglala Sioux people, the lands set aside by their ancestors, and the resources and the environment of the Reservation for the benefit of the Oglala Sioux people both in the present and for future generations. There are significantly increased risks in the modern world from the use of toxic substances which appear in water supplies, in underground water, in the air we breathe, and in the environment around us. There is, as well, the need to assure that the children, the elderly and those at risk live in a safe environment, free of toxic and hazardous materials, and that all the people of the reservation have access to safe drinking water and clean air.

The Oglala Sioux people have always had traditional unwritten laws and practices that by their nature provided for the responsible use and protection of the resources and welfare of the Reservation and its people. But over time there has been a loss of the awareness by some of the people of the importance of following these unwritten traditions. It is, therefore, necessary for the Tribe to translate into written laws some of these traditional protections for members of the tribe from activities which may damage their rights.

These responsibilities mean that it is essential that the Oglala Sioux people have the information which is vital to making informed decisions about the present and future uses of reservation lands, water, air and other natural, cultural and historical resources. They must also understand the impacts of proposed and existing development activities on the air, land, water and human resources of the Reservation. The Oglala Sioux people must also assure that the use of the reservations resources are protected from significant deterioration, depletion or pollution as a result of unmanaged development within the Oglala Sioux tribe's jurisdiction.

The federal government has, moreover, adopted a range of environmental laws which impose significant responsibilities on the government and people of the Oglala Sioux Tribe. Failure to comply with or meet the minimum requirements of these laws and regulations could result in substantial fines or penalties, or the loss of significant opportunities to receive federal support for the protection of the Reservation environment. Such fines or mandatory expenditures imposed on the Oglala Sioux people for violations of federal environmental laws or mandatory compliance with such laws could result in significant funds being diverted away from other tribal priorities. Finally, there are significant opportunities for the Oglala Sioux people to benefit from the management of federal environmental laws through delegation of such programs from the United States Environmental Protection Agency.

As a result of the importance of providing protection for the Oglala Sioux people and the natural and cultural resources of the Reservation, the Tribal government created by Tribal Resolution 97-74 the Environmental Health Technical Team (EHTT or Tech Team). The Tech Team is made up of representatives from tribal departments involved with management of programs affecting the health of the Oglala Sioux people and the reservation environment. After many months of working together on the range of issues before them the Tech Team determined that the environmental laws of the Reservation were inadequate to provide the level of protection needed by the Oglala Sioux people or even required by federal law. To begin the process of bringing the tribe's laws and policies current with the needs of the people and the requirements of the law it was decided that it was necessary to get a much better handle on the actual state of the environment and the development that was taking place on the Reservation.

One of the most effective tools for bringing the tribe's laws and policies current was determined to be the adoption and implementation of a Tribal Environmental Review Code. This code would serve a number of important purposes. First, it would provide the important data gathering function that gives the Oglala Sioux people and the Tribal departments information on essential environmental information, such as: how many septic fields are being constructed and where they are; how many hook-ups there are to public water systems and whether they are using dangerous materials such as lead; where businesses are being sited and whether they handling or storing hazardous or toxic materials; whether proposed developments are being sited near drinking water wellheads, or public water ways, or on soil types that will not accommodate leach fields; and an array of additional important information.

Besides being an essential source of information about development and its affects on the health and environment the Environmental Review Code would provide the various Tribal departments with notice that developments are being proposed which may involve the mission of that particular department. This notice would allow that department to determine if the tribal regulations which that department is charged with implementing are being met by the developer and his/her contractors. It would also allow the Tribe to assure that related requirements for Tribal Employment (TERO) and financial Revenue Office) responsibilities to the Tribe are current. In addition, the Environmental Review Code would provide important development information to the Oglala Sioux Tribe through their District Councils and their Tribal Council Representatives.

The Environmental Review Code will also provide the basis for the Tribe to provide enhanced protection for the Reservation's populace and resources through Tribal departments, further enhancing the exercise of tribal sovereignty, rather than having that function fall to the State or Federal agencies which would otherwise claim the need and, therefore, the right to step in. Finally, it provides the information necessary for the Tribe to determine whether the needs of the Oglala Sioux people in environmental protection are being met in the areas of safe drinking water, minimum water quality standards, pesticide control, air pollution, and all related areas. The Environmental review Code is an important tool to allow the Tribe to meet its responsibilities to protect and plan for the future of the Oglala Sioux people and the Reservation environment.

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OGLALA SIOUX TRIBE

 

PROPOSED ENVIRONMENTAL REVIEW CODE

LEGISLATIVE REPORT AND ANALYSIS

 

 

 

 

 

Prepared for the
Oglala Sioux Tribal Council
By The Native American
Rights Fund
January 29-30, 1998
Rapid City, South Dakota

 

SECTION BY SECTION LEGISLATIVE REPORT FOR THE PROPOSED OGLALA SIOUX TRIBAL ENVIRONMENTAL REVIEW CODE

THE FOLLOWING IS A SECTION BY SECTION ANALYSIS OF THE MEANING AND PURPOSE OF THE PROPOSED ENVIRONMENTAL REVIEW CODE FOR THE OGLALA SIOUX PEOPLE.

PROPOSED OGLALA SIOUX TRIBAL ENVIRONMENTAL REVIEW CODE

§100 Tribal Council Findings

Sections 101 (1) through (8) set forth the findings which support the need for the proposed Environmental Review Code, including the following:

(1) that the Oglala Sioux tribe's Constitution provides that the tribal government is empowered to protect and preserve the health and welfare of the Oglala Sioux people and their land and natural resources;

(2) that the Tribe carries out its constitutional responsibilities through the adoption of tribal ordinances and regulations;

(3) that there is a historic, cultural and spiritual relationship between the Oglala Sioux people and the natural environment;

(4) that there is unmonitored growth and development on the Reservation which has the potential to harm the land and natural resources, and other historical and cultural resources, or threaten the health or welfare of the Oglala Sioux people;

(5) that unmonitored growth and development on the Reservation will continue to occur threatening to interfere with the ability of the Tribal government to carry out its lawful responsibilities;

(6) that unmonitored growth and development impacts the economic viability on the Oglala Sioux people and makes it necessary to gather as much information as possible on those activities and their impacts to inform the Tribal Government concerning those impacts;

(7) that the monitoring and analysis by the Tribe through its agencies of the growth and development is necessary to gauge the impacts of those activities on the health and welfare of the Oglala Sioux people and resources and environment of the Reservation in order to prevent harm to the citizens and resources of the Oglala Sioux Tribe; and

(8) that monitoring growth will permit the Tribe to collect and analyze information and data on development activity within the Reservation in order to better protect the Reservation's people and resources.

§101 Declaration of Policy

This section sets forth the policy of the Tribe to protect and preserve the Pine Ridge Indian Reservation environment and to provide a safe and habitable homeland for the Oglala Sioux people's present and future generations. This policy is implemented by establishing minimum procedures to monitor growth and development within the tribe's jurisdiction, and adopting minimum procedures which will help to protect the reservation's environment and to promote the Oglala Sioux people's stability and security.

§ 102 Definitions

This section sets out the meaning of particular words as used in the proposed Environmental Review Code. This is done to assure people understand the meaning of these words as they are used in the draft code.

 

§103 Permit Requirements for Development; Other Tribal and Federal Laws Still Apply

Subsection (1) provides that development within the tribe's jurisdiction is prohibited unless the developer has obtained an Environmental Review Permit from the Tribe. The exception to this requirement is if the development is by a tribal member for a traditional religious activity of the Oglala Sioux people.

Subsection (2) makes it clear that obtaining an Environmental Review Permit is not a substitute for compliance with other tribal or federal laws that apply to the person or activity involved.

§104 Power to Conduct Review and Issue an Environmental Review Permit; Conditions Upon Determination to Withhold A Permit

Subsection (1) places the responsibility for the review of the Environmental Review Permit application on the Tribal Environmental Health Technical Team (hereinafter "Tech Team") . It also delegates the authority to the Tech Team to determine that the permit:

(a) should issue because the proposed activity will have a low impact on the environment,

(b) should issue because after review, all of the tribal departments reviewing the permit have signed off on environmental review, or

(c) deny the permit because one of the tribal departments reviewing the application withholds sign-off.

Subsection (2) requires that when an application is denied because it does not comply with tribal or federal law, then the Tech Team must:

(a) identify the particular tribal department(s) that withheld sign-off;

(b) explain the reason why sign-off was withheld; and

(c) explain the conditions the applicant must meet to obtain sign-off.

This information is required so that the applicant will know exactly why the permit was denied and what must be done to get the permit issued.

If the applicant still wants the permit, it is his/her responsibility to meet whatever requirements have been listed to obtain sign-off by the tribal department(s) which withheld sign-off. This must, however, be done within 90 days from the time the permit was filed. The Environmental Health Technical Team may, for good cause, extend the 90 day time period for up to an additional 30 days. The judgment as to what is "good cause" is left up to the Tech Team.

§105 Permit Application Requirements

Subsection (1) provides that the Land Office will provide an application form to a developer. The form must have the details of the information required, including the name of the applicant and whether the applicant is a person, a business, religious organization or other entity. If the applicant is not an individual person the applicant must also list his/her job title when filing the application on behalf of a business or other entity. There must be a description of what the developer intends to do along with a description of the land on which the development is to take place. This will allow the reviewers of the permit application to determine whether the developer has an appropriate legal right or title to do the proposed development on the land, and whether he/she has all of the necessary permits, licenses, bonds or other clearances, including archeological, historical, and cultural clearances, required by Tribal law or regulation to conduct the proposed activity.

If the developer believes that the proposed development is low impact and does not require review by all of the tribal departments listed as reviewers, the applicant can list the reasons the proposed development should be considered low impact and request that a permit issue without full review. An example of the type of development that would be included here is fencing.

Subsection (2) provides for a one-hundred dollar ($100.00) fee to be paid by applicants for a commercial development. This fee is to help defray the costs of review which are typically higher for a commercial development, which usually have more impacts than private development.


§106 Permit Application Procedure

Subsection (1) requires that the application be filed in the Tribal Land Office. The Land Office will then do a the following:

(a) Provide the applicant with a receipt for the application stamped with the date and time the application was filed and, where required, a receipt for the application fee.

(b) Make seven (7) copies of the original application, and

(i) place the original application in the Environmental Review Permit permanent file; and

(ii) keep one copy on file in the Land Office to be available for public inspection.

(c) Provide four copies to the Environmental Review Permit Screening Committee. The Screening Committee must then review the application and make a determination whether:

(i) the proposed activity is low impact and does not require review by designated tribal departments. If it doesn't, the Screening Committee will recommend to the Tech Team that the permit be issued. If the Tech Team agrees it must issue the permit BUT may place minimal conditions on it; or

(ii) the proposed activity requires full review by designated tribal departments. If so, the Screening Committee will attach the appropriate routing slip to four of the application copies for circulation to the following designated tribal departments for review and potential sign-off:

Copy I to the Tribal Land Office; the Environmental Protection Program; the Water Resources Department;and Solid Waste Management.

Copy II to the Badlands Bombing Range Project; the Pesticides Enforcement Program; the Groundwater Protection Program; and the Natural Resources Regulatory Agency.

Copy III to the Rural Water Supply System; the Water and Sewer Program; and the Health and Human Services Committee Coordinator.

Copy IV to the Revenue Office; the Tribal Employment Rights Office; and the Housing Authority.

(d) Provide a copy to the Tribal District Office, and Tribal Council representative(s) from the Tribal District where the proposed site is located. This must be done within five (5) days from when the application was filed. This is done to make sure that the local people and their representatives are aware of proposed developments in their communities and allow local people the opportunity for any appropriate input.

Subsection (2) sets out the procedure for the review of the application once the Screening Committee determines that full review is required. Each tribal department designated in Section 106(1) (c) (ii) is required to review the permit application. Each designated department must complete its review within three (3) working days from when it receives the application and either sign- off or withhold sign-off on the application. The three (3) day requirement is to assure that the application moves through the review process as quickly as possible consistent with competent review. Any department that withholds sign-off must state the specific reason(s) for withholding its sign-off and describe the conditions the applicant must fulfill to obtain department sign-off. A tribal department may only withhold sign-off if the proposed activity as described in the permit fails to comply with some requirement of tribal or applicable federal law.

If a tribal department fails to complete its review within three (3) working days then the application is treated as though that department has signed off. The reasoning behind this is that it is important that the application receive timely review and doesn't get bottled up on some department's desk.

Subsection (3) sets out the time frame for completion of the review of a permit application. The entire review process available to the tribal departments listed in Section 106(1) (c) (ii) must be completed within fifteen (15) working days from the date the permit application is filed. The fifteen day deadline includes the decision by the Tech Team whether to issue the permit, subject to any conditions attached pursuant to §106(2) [which requires that any department which withholds sign-off must list the reasons why and what must be done to obtain sign-off] . If the Tech Team fails to act on an application within fifteen (15) working days the applicant can treat that failure as a denial of the permit for the purpose of taking an appeal under § 107 (Appeals and Judicial Review).

Failure of the Tech Team to complete review and decision within fifteen (15) working days gives the applicant the option of either seeking appeal immediately, or waiting to see why the permit application has been delayed. If the delay is because a tribal department has withheld sign-off, the applicant can work with that department to remedy whatever deficiency the department has identified as the reason for withholding sign-off. This must, however, be completed within ninety (90) days from the filing of the permit as provided in § 104 The applicant may either work with the tribal department and the Tech Team or take an appeal to the Appeals Committee at any time they feel they have been wrongfully denied sign-off. Once the Tech Team does act on the permit and denies it pursuant to § 104 (1) (c) then the applicant has only ten (10) working days in which to file an appeal.

§107 Appeals and Judicial Review

This section describes the rights of any person who feels their rights have been violated. The person may appeal the action (or inaction after 15 days) of the Tech Team in reviewing and issuing or denying a permit application. Subsection (1) describes the process for taking an appeal to the Appeals Committee, which is made up of the Coordinators of the Committees of the Tribal Council and one representative of the Grey Eagle Society.

Subparagraph (a) provides that any person aggrieved by either an Environmental Review Permit being issued or denied must file their appeal for administrative review within ten (10) working days from that decision. They do this by filing a Notice of Appeal with the Secretary of the Land Committee. The Secretary accepts the filing on behalf of the Appeals Committee. When the Secretary gets a notice of Appeal there are several things that must be done and deadlines for each one. First, on the same date as the Appeal is filed the Secretary must provide a copy of the Notice of Appeal to the Tech Team. This is because it is the action (or inaction within 15 days) of the Tech Team that is being appealed, and because the Tech Team has the records containing the application and all of the review documents from the various tribal departments. If the appeal is because the Tech Team issued a permit someone believes should, for some legal reason, not have been issued, then the Secretary must also provide a copy to the permittee because the permit is held in abeyance until the appeal is decided..

Once the Tech Team gets the Notice of Appeal it has ten (10) working days within which to forward to the Secretary of the Land Committee a copy of all of the records which it has on the application and the decision (or failure to decide) There is also a time of twenty (20) working days from the filing of the Notice of Appeal in which the Tech Team, the permittee, the person appealing, or any other interested person, may file with the Appeals Committee any information, evidence or other documents relevant to the appeal. The Appeals Committee must then decide the appeal based on the information submitted to it within thirty (30) working days from the time that it receives the records from the Tech Team. The Appeals Committee must uphold the action of the Tech Team unless there is an adequate showing that the Tech Team violated tribal or applicable federal law in some way. The burden of proof is on the party bringing the appeal. If the appeal is on the basis that a permit was improperly issued, the permit is suspended pending the outcome of the appeal.

Subparagraph (c) provides that the decision of the Appeals Committee shall be final for the Tribal Administration. This is the basis for taking an appeal to Tribal Court.

Subsection (2) provides for an appeal to the Oglala Sioux Tribal Court from the decision of the Appeals Committee by any person who was a party to the Appeal before the Appeals Committee. A party receiving a final decision by the Appeals Committee may file an appeal in the Oglala Sioux Tribal Court against the Tech Team within 30 calendar days from the date of the decision of the Appeals Committee. The Tech Team is identified in order to make it clear who should be identified in the appeal. The right to appeal to tribal court is for the sole and limited purposes of reviewing the decision of the Environmental Health Technical Team and/or the decision of the Appeals Committee. The Tribal Court review is strictly limited in subparagraphs (a) through (c) to: (a) whether the decision is supported by substantial evidence; (b) whether the permit is issued or denied in compliance with the Environmental Review Code; or (c) whether the action of the Environmental Health Technical Team is contrary to tribal law or is arbitrary and capricious. Relief is limited to other than money damages.

§ 108 Authority to Seek Enforcement

This section makes the entire code enforceable. Without it the code may mean nothing. It allows the Tribal Environmental Specialist, with the Tribal Attorney's assistance, to issue a Cease and Desist Order against unpermitted development. The Environmental Specialist may, on his/her own, issue an order to a developer to stop what they are doing. But the developer may simply ignore them. So the Environmental Specialist may also go to the Oglala Sioux Tribal Court and ask for any remedy otherwise available under Tribal law, including, but not limited to, an order for unpermitted activity to be stopped, an order for any unpermitted development to be removed, and/or an order for money damages in an amount necessary to remedy any impacts occasioned by the unpermitted activity. This will give the Tribe the ability to make the Environmental Review Code meaningful.

§ 109 Severability

This section provides that should any portion of the Environmental Review Code be held to be invalid, illegal or unenforceable for any reason, the rest of the Code shall not be effected.

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